Arthur TANGIYEV, Petitioner, v. Arthur TELT, Respondent.
Arthur Tangiyev, the petitioner in this proceeding (“Petitioner”), commenced this proceeding against Allen Telt, the respondent in this proceeding (“Respondent”) pursuant to RPAPL § 713(10) seeking possession of 2685 East 26th Street, No. 3, Brooklyn, New York (“the subject premises”) on the ground of an alleged illegal lockout. Respondent interposed an answer alleging, inter alia, that restoration to possession would be futile. The Court held a trial of this matter on April 23, 2021.
Petitioner testified that Respondent introduced himself to Petitioner as a landlord of the subject premises after having seen an advertisement for it; that Respondent lives in the house in which the subject premises is located (“the House”); that Respondent said he was going to give Petitioner a lease for two years; that they never signed a lease, although Petitioner asked for one; that Petitioner proceeded to live at the subject premises with his six-year-old son and his fiancé from October of 2019; that he paid rent in the amount of $1,850 for the subject premises plus electricity until Respondent refused to make necessary repairs; that Petitioner filed a Housing Part proceeding against Respondent pursuant to New York City Civil Court Act § 110; that there was a judgment in that case directing Respondent to make repairs; that after that Respondent called the Administration for Children's Services (“ACS”) on him; that ACS opened a case against Petitioner around January or February of 2020; that an ACS worker told him that either Petitioner or Petitioner's son should move out of the subject premises pending the ACS investigation; that when he was out of the subject premises, his family was still living there; that he returned to the subject premises in April of 2020; that police were called when he entered; that the ACS case was closed out as unfounded about three months before his testimony; that Respondent called police against him 75 times; that that made him feel intimidated; that he had been receiving food stamps and unemployment benefits at the subject premises, although Respondent removed his mailbox and so he rerouted the benefits to a different mailing address; that he never told Respondent that he was abandoning the subject premises; that the most recent contact was in March of 2021, he came to the subject premises to shower and sleep when Respondent removed the keys and kicked him; that Respondent's daughter stated that she would be a witness, that Petitioner would be arrested, and that they would have an order of protection against him; and that he was scared to come back because when he came he saw a police car in front of the House.
Petitioner introduced into evidence a video of an altercation between him and Respondent at the House according to which someone is shouting about having someone arrested and where Respondent tells Petitioner to give Respondent a key and that Petitioner does not have a legal key.
Petitioner introduced into evidence a petition in a holdover proceeding that Respondent has commenced against Petitioner, captioned at Telt v. Tangiyev, Index # 307955/2020 (Civ. Ct. Kings Co.), verified on October 16, 2020. The petition alleges a termination of a month-to-month tenancy, predicated on the purported service of a thirty-day notice of termination served on March 9, 2020 and expiring April 30, 2020. Petitioner testified that he answered the holdover proceeding.
Petitioner testified on cross-examination that he left the subject premises when ACS came; that he went into a program upstate regarding an alcohol problem; that he added a different mailing address in Manhattan to public benefits case; that he does not live at that other address; that someone else lives there and that person lets him get mail there; that he moved to a hotel about ten days before his testimony; that he was told to leave the address in Manhattan because they only gave him that spot for two months; that he was not going to sublet the subject premises to the people depicted in the video; and that they were family friends.
Petitioner testified on redirect examination that he was not allowed to visit the subject premises when he was in Manhattan because of the order of protection; that he came to the subject premises when his family was not there so that he could shower; that he saw his fiancé across the street from the subject premises during this time; and that he observed her coming and going from the subject premises in slippers when she came out of the House to talk to him.
Respondent introduced a deed into evidence showing that he is the title owner of the House. Respondent testified that Petitioner moved into the subject premises as of October 15, 2019; that Petitioner lived on first floor; that he hired a lawyer to evict Petitioner; that Petitioner never had a written lease; that Petitioner last lived in the subject premises as of March of 2020; that Petitioner left the subject premises because of a fight with Petitioner's fiancé and because of an order of protection; that Petitioner's fiancé stayed in the subject premises until October of 2020; that Petitioner's fiancé moved out with Petitioner's son and gave him the key; that on March 27, 2021, Respondent experienced a terrible smell coming from the subject premises; that he used tools to break the lock of the subject premises; that the smell came from the refrigerator; that he found black mold all over and a bag with meat in it that was the source of the smell; and that he had to remove the rotten meat and clean the appliance. Respondent introduced into evidence a photograph of the meat in the refrigerator.
Respondent testified that after he cleaned the refrigerator in the subject premises, there was a hole in the place where the old lock was installed; that the next day he went to the hardware store and he purchased a new lock; that he remembered the incident memorialized in the video that Petitioner introduced into evidence; that he thought that the incident took place in January of 2021; that at that time he had heard Petitioner's voice in the House; that he knocked on the door of the subject premises; that Petitioner screamed at him that he would arrest him; that Respondent called the police; that he told Petitioner to wait for the police; that Petitioner did not sleep at the House that night; that Petitioner did not spend any nights in the subject premises since January of 2021, which he knew because he was working from home and he has a security camera around the House and he constantly checks what happens; that if Petitioner came to the subject premises he would call the police; that he saw Petitioner in August of 2020 and he called the police; that he saw Petitioner in the House every day before March of 2020; and that he saw Petitioner twice after that and both times he called the police.
Respondent testified on cross-examination that he called police upon seeing Petitioner the first time, in August of 2020, because he knew about the order of protection; that the front door at that time was wide open and he saw Petitioner inside the subject premises; that he asked Petitioner what he was doing there and said that Petitioner was not supposed to be here; that Petitioner left before the police could get there; that this incident took no more than five minutes; that he learned about the order of protection because Petitioner told him that an ACS worker was unhappy with work that Petitioner was doing on the worker's car; that Petitioner said that Family Court issued an order of protection in 2018 and that there was another year on the order of protection; that the security camera in the House is motion-activated; that Petitioner's fiancé and son were still in the subject premises as of August of 2020; that he saw Petitioner communicate with Petitioner's fiancé at a laundry or around a corner many times and he did not call police; that he only called police to report that Petitioner was inside the House, not to have him removed; that he communicates with ACS workers; that he felt a responsibility to report Petitioner because he was concerned about the safety of Petitioner's son; that he thought that something inappropriate happened between Petitioner and Petitioner's son; that his daughter told him to report Petitioner to ACS; that he told Petitioner that he would sign a lease with him; that Petitioner paid him rent from October through December of 2019; that Petitioner emailed and texted him to the effect that Petitioner was going to try to move; that he thought that Petitioner was always lying about moving; that, in March of 2020, Petitioner had huge fights with Petitioner's fiancé; that he called the police at that time; that Petitioner did not open the door for the police; that he told the police to break the door; that Petitioner left after that; that Petitioner's fiancé voluntarily surrendered the keys to the subject premises on March 27, 2021; that Petitioner had some personal property in the subject premises when Respondent went there to fix the refrigerator, although the only furniture he saw was a mattress on the floor and a couch, which are still in the subject premises; that he removed Petitioner's belongings on March 27, when Petitioner's fiancé gave him the keys; that Petitioner's fiancé had called police at that time because the locks had been changed; and that after that she never returned to the subject premises to pick up personal property although she said that she would.
Respondent testified in response to the Court's question that even though Petitioner's fiancé moved out of the subject premises in October of 2020, he called police when he saw Petitioner at the subject premises in January of 2021 because he thought it was suspicious that Petitioner was there.
A resident of another unit in the House testified that she has lived there for eight years; that she saw Petitioner once in a while when he lived at the subject premises; that Petitioner was in a huge fight in March of 2020, after which she never saw Petitioner at the subject premises; and that she experienced a terrible smell in the House which became worse when she saw Respondent open the door of the subject premises. She testified on cross-examination that Petitioner used to always smoke outside; that she did not see him smoke after March of 2020; that she did not hear Petitioner fighting like he used to after March of 2020; that she saw Petitioner's fiancé and Petitioner's son around; and that she stopped seeing Petitioner's fiancé in the middle of the fall of 2020.
As Respondent testified that Petitioner paid rent for the subject premises and characterized Petitioner as a tenant in the holdover proceeding that Respondent commenced against him, the preponderance of the evidence shows that Petitioner is a tenant of the subject premises. Petitioner therefore has standing to seek relief on a theory of a lockout. Massare v. Di Nardo, 35 AD3d 1157, 1158 (4th Dept. 2006), Lyke v. Anderson, 147 AD2d 18, 25 (2nd Dept. 1989), Fishel v. Baronelli, Ltd., 119 Misc 2d 625, 626 (Civ. Ct. NY Co. 1983)(Saxe, J.), Alcindor v. Raphael, 2018 N.Y.L.J. LEXIS 569 (Civ. Ct. NY Co.), Darob Holding Co. v. House of Pile Fabrics, Inc., 62 Misc 2d 899, 900 (Civ. Ct. NY Co. 1970). Respondent testified that he changed the locks to the subject premises, which proves the other element of Petitioner's lockout cause of action, i.e., forcible removal. Romanello v. Hirschfeld, 63 NY2d 613 (1984), modified for reasons stated in the dissenting opinion of Milonas, J. at 98 AD2d 657 (1st Dept.1983), Mauray Realty Co. v. Advantage Plastics, Inc., 172 AD3d 658 (1st Dept. 2019), 3855 Broadway Laundromat, Inc. v. 600 West 161st Street Corp., 156 AD2d 202, 203 (1st Dept. 1989), Cetin v. Sung Jin Choe, 2019 NY Slip Op. 30526(U)(S. Ct. NY Co.), Morgan v. 440 St. Marks Realty LLC, 2020 N.Y.L.J. LEXIS 1025 (Civ. Ct. Richmond Co.).
Respondent interposed a defense that Petitioner had abandoned the subject premises. The burden of proving a surrender rests upon the party seeking to establish it or relying upon such surrender. Sam & Mary Housing Corp. v. Jo/Sal Market Corp., 100 AD2d 901, 901-902 (2nd Dept. 1984), affirmed, 64 NY2d 1107, 1108 (1985). In order satisfy his burden of showing that Petitioner abandoned the subject premises, Respondent must prove Petitioner's expressed intent to abandon the subject premises and an overt act. Delgado v. 1038 Southern Blvd. Realty Assocs., N.Y.L.J. May 28, 2008 at 27:1 (Civ. Ct. Bronx Co.), Gardner v. Smith, N.Y.L.J. Dec. 21, 2005 at 22:3 (Civ. Ct. Kings Co.), Walker v. 570 7th Ave. LLC, N.Y.L.J. June 8, 2005 at 22:1 (Civ. Ct. Kings Co.) N'tuli v. Rinaldi, N.Y.L.J. Jan. 31, 2001 at 32:2 (Civ. Ct. Richmond Co.).
The evidence of the rotting food in the refrigerator, along with other evidence, proved that Petitioner had been absent from the subject premises for a protracted period of time. However, it was Respondent who occasioned Petitioner's absence from the subject premises, first by reporting Petitioner to ACS and then by calling the police every time that Respondent saw Petitioner at the subject premises. Even assuming arguendo that Respondent initially called ACS in good faith, Respondent continued to call the police on Petitioner even after Respondent's ostensible reason for doing so, an “order of protection” that no party introduced into evidence, did not apply because neither Petitioner's fiancé nor Petitioner's son were in the subject premises at the time. Moreover, Respondent's testimony that Petitioner was lying when Petitioner said that he wanted to move out of the subject premises undermined Respondent's position that Petitioner intended to surrender possession of it. On this record, Respondent does not satisfy his burden of proving that Petitioner intended to abandon the subject premises.
Respondent argues that restoration of Petitioner to possession would be futile insofar as the apparent unregulated status of the subject premises and Respondent's commencement of a holdover proceeding against Petitioner ultimately would entitle Respondent to possession anyway. When a tenant otherwise proves the elements of a lockout cause of action, restoration may not be appropriate under such circumstances, Bernstein v. Rozenbaum, 20 Misc 3d 138(A) (App. Term 2nd Dept. 2008), when an eviction of the tenant appears to be “certain.” Soukouna v. 365 Canal Corp., 48 AD3d 359 (1st Dept. 2008).
However, as of this writing, a deadly pandemic has gripped the world generally and has had a severe impact on New York. In response to the pandemic, the Legislature has enacted the COVID-19 Emergency Eviction and Foreclosure Prevention Act of 2020, L. 2020, c. 381 (“the Act”) which, inter alia, stays eviction proceedings statewide, with some exceptions.1 Section 3 of the Act, entitled “Legislative intent,” states that the pandemic poses a unique and historic threat to public health and goes on to say that the Legislature intends to “avoid as many evictions as possible” for people experiencing pandemic-related hardships or who have difficulty moving. In the first instance, the pendency of the Act casts doubt on the “certainty” of Respondent's ability to evict Petitioner. Perhaps more importantly, excusing the self-help that Respondent has engaged in would clear a path for landlords to disregard the restrictions that the Legislature has placed on evictions and subvert the Legislature's findings concerning the adverse impact evictions have on public health. Whatever validity Respondent's argument bears in other contexts, then, must give way to the exigencies of our current moment.
Accordingly, the Court awards Petitioner a final judgment of possession and permits forthwith issuance of the warrant, with no stay on execution. The Court further directs Respondent to restore Petitioner to possession of the subject premises forthwith. On default, the Petitioner may move to hold Respondent in contempt. Petitioner may also seek the assistance of police in enforcement of this order. This constitutes the decision and order of this Court.
1. The Act and an Administrative Order promulgated by the Chief Administrative Judge in response to the Act can be found here: http://nycourts.gov/whatsnew/pdf/AO-340-20.pdf
Jack Stoller, J.
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